Testimony of the Boston Bar Association
Before the Joint Committee on the Judiciary
In Support of S 753 and H 2165
An Act Relative to Providing Access to Scientific and Forensic Analysis
June 8, 2011
Presented by David M. Siegel, Professor, New England Law | Boston
I am a member of the Boston Bar Association’s Task Force to Improve the Accuracy and
Reliability of the Criminal Justice System and a member of the committee responsible for
drafting the legislation. I am also Chair of the New England Innocence Project’s Policy
Committee and I urge the Judiciary Committee to pass S 753 and H 2165, the Post-Conviction
Access to Forensic and Scientific Analysis Act.1 This legislation creates a straightforward
procedure for obtaining post-conviction forensic and scientific testing of evidence in cases of
possible wrongful conviction, eliminates unnecessary legal and procedural uncertainty
concerning the proper response to these requests, and should dramatically reduce the time and
complexity for handling them. In so doing, it would bring the Commonwealth into line with 48
states, the District of Columbia and the federal government, all of which guarantee postconviction access and testing by statute.
This legislation establishes a critically-needed process for persons who claim they were
wrongfully convicted to seek post-conviction testing of evidence, for prosecutors to ensure the
reliability and materiality of this evidence in identifying the perpetrator, and for judges to
conduct a focused and discrete inquiry, using a familiar legal standard, to assess these requests.
By narrowing the issues, requiring full disclosure of underlying documents and the results of all
tests, this legislation creates a transparent, largely non-adversarial mechanism for determining
what evidence exists for testing, establishing its provenance, assessing its significance, and, if
appropriate, overseeing testing. The legislation also relies on a best practices approach to
establish a uniform obligation on governmental entities in the Commonwealth to preserve
evidence.
Under current law, an inmate claiming he or she was wrongfully convicted can spend years
seeking access to evidence for testing that could dispositively establish factual innocence. Each
such effort can require multiple court appearances and hearings, wasting scarce judicial and
prosecutorial resources addressing what, in substance, are relatively narrow questions. This
unnecessarily delays finality in the criminal justice system, prevents justice from being done and,
if testing ultimately exonerates a defendant, simply adds to the cost of their compensation and
damages, plus the unnecessary expense of their wrongful incarceration, supervision or both.
1
The provisions of these bills are identical.
A brief summary of the Act follows. I have also enclosed a brief analysis of the project cost,
which has proven minimal throughout the country. I strongly encourage you to enact this
balanced, comprehensive and evenhanded approach to addressing this problem.
Summary of the Post-Conviction Access to Forensic and Scientific Analysis Act
The Post-Conviction Access to Forensic and Scientific Analysis Act provides a mechanism for
persons convicted in Massachusetts courts, who claim that they are factually innocent, to obtain
forensic or scientific analysis of evidence in their case that would prove their innocence.
Available tests would be limited to forensic or scientific techniques applicable to evidence or
biological material, whose results are admissible in Massachusetts courts, which could prove the
person’s innocence.2
This Act provides both a statutory right to such testing for persons who meet specific criteria and
a process for obtaining the testing. Persons convicted of a crime in the Commonwealth (after
trial, guilty plea, or plea of nolo contendere),3 who are either incarcerated or on some form of
probation or parole for this conviction, could apply for this testing if they assert that they are
factually innocent.4 In order to obtain testing, applicants would have to file a motion before the
court in which they were convicted identifying the evidence that they wish to have tested, show
that the evidence was not previously tested and explain why, and provide copies of all tests and
examinations concerning analysis done in the case.5
Copies of these materials would be served upon the prosecutor, who would have 60 days to
respond with an inventory of existing evidence, copies of all tests and examinations concerning
analyses done in the case, and any objections to the motion.6 The movant would have a right to a
hearing on the motion, and the Court would have discretionary authority to appoint counsel on
the motion.7 Testing would only be ordered if the court found by a preponderance of the
evidence that testable material exists, that it has been subject to an adequate chain of custody,
that it has not been previously tested, the tests could result in evidence material to the movant’s
identification as the perpetrator, that it is not intended for delay or obstruction of justice and that
the test results have been found admissible in Massachusetts courts.8
If a court granted a motion for testing it could, if it saw fit, stay other litigation in the movant’s
case (such as post-conviction actions or appeals), thereby possibly saving unnecessary
expenditure of judicial resources. The filing or granting of a motion, however, could not effect or
delay pending terms of incarceration, probation, parole or any other sentence imposed.9
2
§3(b).
§3(d).
4
§2 (Applicability).
5
§3(b).
6
§4 (Service and Response to the Motion).
7
§§5 & 6.
8
§7 (Ruling on the Motion).
9
§11 (Effect on Other Proceedings).
3
The Act sets out a mechanism for the parties to choose a laboratory to conduct the testing, and
for the designation of a laboratory if the parties cannot agree.10 It also delineates the method of
communication with the laboratory, and provides that the costs of testing will be borne by the
movant or, if he is indigent, the Commonwealth. The results of any such testing shall be
disclosed to both parties and to the court. The Court may order further testing if results are
inconclusive and further testing would satisfy the same standard as did the original testing.11
The Act also provides for preservation of any evidence or biological materials collected during
the investigation of a case for the duration of the defendant’s incarceration, and it authorizes the
Attorney General and the Secretary of Public Safety to promulgate regulations to effect this
preservation.12 Public officials are excluded from liability under the act except for willful or
wanton misconduct or gross negligence resulting in destruction or deterioration of evidence.13
Prosecutors are authorized to provide victims notice of any such motion for testing.14 Orders
allowing or denying testing may be appealed.15 The Act provides that prosecutors and defendants
may always undertake testing by agreement without using the Act’s procedures.16 The right
provided in the Act to seek testing, however, may not be waived.17
10
§8 (Laboratory).
§13 (Further Proceedings Following Analysis).
12
§16 (Preservation of Evidence and Biological Material).
13
§17 (Liability).
14
§14 (Notice to Victims).
15
§18 (Appeal).
16
§2 (Applicability).
17
§15 (Waiver of Rights).
11
Post-Conviction Access and Testing in Massachusetts: What Will it Cost?
David M. Siegel
The direct costs associated with providing post-conviction access and testing in cases of persons
who claim factual innocence are a function of the number of persons who might seek such
testing and the average cost per test. Although forty-eight states now provide broad postconviction access and testing by statute, there is no national data source on costs. The experience
of some states may be illustrative.
Number of Requests
The number of persons who might seek such testing should be a function of the number of
defendants convicted and the ease of seeking testing. In New York, for example, one of the first
states to authorize post-conviction access and testing by statute, one hundred inmates filed petitions
seeking post-conviction testing in the first seven years after adoption of its testing statute.18
One state – Ohio – provides a useful measure of potential costs, because it initially enacted a
post-conviction access and testing law with a very short period to file for testing. Inmates in
Ohio were thus encouraged to file promptly to preserve their rights. Ohio’s experience with the
costs of access and testing were such that it eventually eliminated the short period in which to
file because it concluded that the costs were not significant.
Ohio provided for post-conviction DNA testing in 2003, and required all inmates convicted
before October 29, 2003 to file an application for testing within one year (by October 29, 2004).
This period was subsequently extended an additional year.19 Given the relatively short filing
deadline, Ohio thus presents a rough snapshot of the magnitude of potential applications for
testing.
As of March 7, 2006, there had been 307 applications for testing, 220 had been denied, 15 had
been granted and 72 were pending.20 Ohio’s total prison population in October 2005 was
44,583,21 or nearly four times that of Massachusetts.22
In 2006, Ohio removed the sunset period and allowed inmates to file an application for testing at
any time.23 A detailed fiscal analysis24 of the projected cost of future testing concluded that the
total cost of testing for the entire state would be less than $100,000 per year.25
18
Margaret A. Berger, Lessons from DNA: Restriking the Balance Between Finality and Justice, in DNA AND THE
CRIMINAL JUS TICE SYSTEM, at 109, 115 (David Lazer, ed., 2004).
19
Substitute House Bill 525, 125th General Assembly.
20
Ohio Legislative Service Commission, Fiscal Note & Local Impact Statement, Sub. Sb. 262, “Detailed Fiscal
Analysis” at 3 (http://www.lbo.state.oh.us/fiscal/fiscalnotes/126ga/SB0262SP.htm).
21
Ohio Department of Rehabilitation and Correction, October 2005 Facts
(http://www.drc.ohio.gov/web/Reports/FactSheet/October%202005.pdf).
22
Massachusetts Department of Corrections, Weekly Count Sheet (5/30/2011) lists population at 11,744
(http://www.mass.gov/Eeops/docs/doc/research_reports/wkly_countsheet/2011/2011_wc05_30.pdf ).
Texas, with nearly fifteen times the prison population of Massachusetts,26 enacted a postconviction testing statute in 2001. The Texas Task Force on Indigent Defense and the Texas
District and County Attorneys Association, in a September 2010 survey of Texas Prosecutors,
found a total of 1.023 requests for testing over nearly ten years.27
Cost per Test
The cost per test can vary depending upon the number of items (i.e., evidence that may have
biological material) or locations on an item to test. Some items (e.g., a rape kit), provide fewer
potential places to test than, for example, clothing collected at a scene. However, there are data
concerning the average testing costs per case.
In 2006, North Carolina’s Office of State Budget and Management released a Cost Study of DNA
Testing and Analysis,28 which included a detailed time-study of testing costs at both the North
Carolina State Bureau of Investigation crime laboratories, as well as cost data for tests sent to
private laboratories. The study found the average cost for in-house DNA processing of a criminal
case was $569. It found the average cost for DNA processing a rape kit in which there was no
suspect (including both those done in-house and those sent out to private laboratories) of $729.29
A request for proposals from private labs in 2004 to process backlogged cases resulted in per
case bids of $445 to $1200. The report also provided survey data from other states showing
average costs of testing both rape kits and criminal cases ranged from to $425 (in Nebraska) to
$1720 (in Oklahoma).30 Ohio’s original estimate of testing costs was $1,500 per case.31
Other costs associated with providing post-conviction access and testing in cases of persons who
claim factual innocence could include the burden on indigent defender or appointed counsel
resources (when counsel is appointed to assist with applications), prosecutorial resources in
responding to such applications for access and testing, and on judicial resources in considering
and ruling on such requests. Providing post-conviction access and testing by statute, however,
should provide cost savings in these areas, because the absence of a statutory right and a
statutorily established procedure mean each such case must be litigated anew.
23
Substitute S.B. 262; Signed by Governor 07/11/2006. See Baldwin’s Rev. Code § 2953.21.
Ohio Legislative Service Commission, Fiscal Note & Local Impact Statement, Sub. Sb. 262 (available at:
http://www.lbo.state.oh.us/fiscal/fiscalnotes/126ga/SB0262SP.htm).
25
Id.
26
Pew Center on the States, Prison Count 2010, State Population Declines for the First Time in 38 Years, Report
lists Texas; prison population as of January 2, 2010 as 171,249 (at:
http://www.pewcenteronthestates.org/uploadedFiles/Prison_Count_2010.pdf )
27
Texas Task Force on Indigent Defense and the Texas District and County Attorneys Association, Post-Conviction
DNA Testing Survey, Policy Memorandum (at:
http://www.courts.state.tx.us/tfid/pdf/DNAPostConvictionREport0910.pdf )
28
North Carolina Office of State Budget and Management, Cost Study of DNA Testing and Analysis
As Directed by Session Law 2005-276, Section 15.8, March 1, 2006 (available at:
http://www.osbm.state.nc.us/files/pdf_files/3-1-2006FinalDNAReport.pdf).
29
Id. at 7, Table 4.
30
Id. at 8, Table 7.
31
Ohio Legislative Service Commission, Fiscal Note & Local Impact Statement, Sub. Sb. 262, “Detailed Fiscal
Analysis” at 3 (available at: http://www.lbo.state.oh.us/fiscal/fiscalnotes/126ga/SB0262SP.htm).
24
Obviously there are also cost savings from providing post-conviction access and testing to
inmates who have been wrongfully convicted including the costs of their incarceration and/or
post-release supervision. Most significantly, delays in obtaining access to and testing of evidence
in cases of persons who are wrongfully convicted increase damage awards they obtain, because
these awards are a function – in part – of the length of the period of wrongful incarceration.
These can total millions of dollars in a single case.